109 S.E. 129 | S.C. | 1921
October 10, 1921. The opinion of the Court was delivered by Action for partition of a lot in the city of Columbia, involving questions of accountability for rents, betterments, taxes, and homestead. The lot belonged to Rosina Wright, who died at an unstated time prior to 1903, intestate. Her heirs at law were a husband, Sterling Wright, and a daughter, Julia Peets. The daughter died in 1909, intestate. Her heirs were her husband, A.E. Peets, and a daughter, the plaintiff, Rosina Peets. A.E. Peets died in 1917, leaving a will naming his daughter, Rosina, his sole devisee. *420
Upon the death of Rosina Wright, her title descended, one-third to her husband, Sterling Wright, and two-thirds to her daughter, Julia Peets. Upon the death of Julia Peets, her two-thirds interest vested in her husband, A.E. Peets, one-third of said two-thirds, two-ninths, and in her daughter, Rosina Peets, two-thirds of said two-thirds, four-ninths. Upon the death of A.E. Peets his two-ninths interest vested under his will in his daughter, Rosina Peets, so that she became seized of the original two-thirds interest of her mother, Julia Peets. Sterling Wright, husband of Rosina Wright, who inherited one-third interest in the lot, went into exclusive possession of it in 1903, and married the defendant, Anna Wright. He died in 1918, leaving a will by which he devised his one-third interest to Anna Wright, his second wife. At that time the plaintiff, Rosina Peets, and the defendant, Anna Wright, became tenants in common, owning respectively two-thirds and one-third interests.
The rental value of the premises has been fixed by the Master and by the trial Judge at $15 per month. The Master adopted as the initial date of the accounting July 4, 1909, that being the date of the death of Julia Peets, mother of the plaintiff, deciding that the claim for rent prior to that date against Sterling Wright should be offset against improvements, betterments, and taxes paid out by him. To this action all parties appear to have consented.
The rental value for which Sterling Wright was accountable, from July 4, 1909, to the date of his death, August 30, 1918, is two-thirds of $1,648, $1,098.66; Anna Wright, from August 30, 1918, to September 10, 1920, (date of Master's report) two-thirds of $365, $243.34 — total, $1,342. (Error of $6.67 in the Master's calculation.)
Anna Wright was allowed credit for city taxes, State and county taxes, repairs and insurance paid by both Sterling Wright and herself, between July 4, 1909, and September *421 10, 1920, amounting to $202.05 and Rosina Peets for $10.30 taxes. In stating the account, the Master allowed Anna Wright credit for the whole sum of $205.05, whereas he should have allowed her credit for only two-thirds of that sum, $136.70. A proper statement of the account upon the basis adopted by the Master would therefore be:
Rents accountable by —
Sterling Wright ................................ $1,098 66
Ann Wright ..................................... 243 34
_________
$1,342 00
Less two-thirds of taxes, repairs, etc. $136 70
Less one-third of taxes paid by
Rosina Peets ..................... 3.43 133 27
_______ _________
$1,208 73
The defendant, Anna Wright, objects to being held accountable for this item of $1,098.66, for which Sterling Wright was accountable.
If Sterling Wright were alive and a party to this 1, 2 suit, and it appeared that he was personally accountable to his cotenant for $1,098.66, his proportion of the rental value of the premises while he had been in possession, it would unquestionably be held that in the division of the proceeds of sale he must account therefor. As it is, Sterling Wright is dead, and Anna Wright has succeeded to his interest. If the devolution of his interest upon her cannot confer a greater interest than he had, and if his interest would have been subject to this accounting, it is difficult to see why her interest would not be also.
"Accounting for waste, for betterments, and for rents among cotenants is now recognized as an incident to the right of partition, and the universal practice for the Court *422
of equity is to adjust all these matters in the suit for partition."Vaughn v. Langford,
The defendant's claim to a homestead is concluded by the decision of this Court in the case of Tedderv. Tedder,
"A tenant in common will be allowed his homestead in the common property as against the claims of his creditors, but not as against the claims of his cotenants, so as to defeat their right to partition, or an accounting for rents and profits received by him."
Some suggestion is made in the argument of defendant's counsel in reference to the statute of limitations against the accountability for rental value. No such question was raised before either the Master or trial Judge, and will not be considered here, other than to say that the case of Vaughn v. Langford,
Let the report of the Master, the decree of the trial Judge, and the exceptions be reported.
The case will be remanded to the County Court of Richland County, with directions to formulate a decree of partition and sale providing: (1) That from the proceeds of sale there shall be first paid the costs and expenses of this action in the lower Court and on the sale; (2) that two-thirds of the remaining net proceeds of sale be paid to the plaintiff or her attorneys; (3) that out of the one-third remaining the plaintiff's costs and disbursements of the Supreme Court be first paid; (4) That from the remainder of said one-third, there shall be paid to the plaintiff or her attorneys the sum of $1,208.73 with interest at 7 per cent. from September 10, 1920, together with $10 per *423 month, two-thirds of rental value of the premises, from September 10, 1920, to day of sale; (5) that the remainder of said one-third be paid to the defendant or her attorney.
The judgment of this Court is that the judgment of the County Court be modified as herein indicated, and that the case be remanded to that Court for such further orders as may be necessary to carry into effect the conclusions herein announced.
